Porthaze Pty Limited v Friend [2016] NSWCATCD 71

Porthaze Pty Limited v Friend [2016] NSWCATCD 71

In HB 15/32089, Porthaze Pty Limited's success did not itself amount to special circumstances and its early Calderbank offer did not justify a costs order because the owners had commenced proceedings only the day before, did not yet have their expert report, and were not in a position to assess the value of claims they would have had to release; it was therefore not unreasonable for them not to accept the offer. In HB 15/41204, no special circumstances existed under section 60 because the defective work case was not complex, but rule 38 permitted an award of costs because the amount claimed exceeded $30,000; as the owners were successful and there was no disentitling conduct, Porthaze Pty...

Jurisdiction
Australia
Judgment Date
23 August 2016
Procedural Posture
Costs Decision in Consumer and Commercial Division Home Building Proceedings / After Final Orders Made on 1 April 2016
Outcome
Costs ordered partly in favour of Simon and Katrina Friend; no costs order in favour of Porthaze Pty Limited in HB 15/32089.
Legal Topics
['special Circumstances for Costs' 'calderbank Offers' 'expert Costs' 'defective Building Work']
['civil Procedure' 'costs' 'consumer and Commercial' 'home Building'] ['special Circumstances for Costs' 'calderbank Offers' 'expert Costs' 'defective Building Work']

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Procedural Posture

Costs Decision in Consumer and Commercial Division Home Building Proceedings / After Final Orders Made on 1 April 2016

Legal Issues

  1. 1 ['Whether special circumstances warranted a costs order in favour of Porthaze Pty Limited in HB 15/32089 under section 60 of the Civil and Administrative Tribunal Act 2013.' "Whether the owners acted unreasonably in not accepting Porthaze Pty Limited's 1 July 2015 Calderbank offer." 'Whether special circumstances warranted a costs order in favour of Simon and Katrina Friend in HB 15/41204 under section 60 of the Civil and Administrative Tribunal Act 2013.' 'Whether costs could be awarded to Simon and Katrina Friend under rule 38 of the Civil and Administrative Tribunal Rules 2014 because the amount claimed was more than $30,000.']

Ratio Decidendi

In HB 15/32089, Porthaze Pty Limited's success did not itself amount to special circumstances and its early Calderbank offer did not justify a costs order because the owners had commenced proceedings only the day before, did not yet have their expert report, and were not in a position to assess the value of claims they would have had to release; it was therefore not unreasonable for them not to accept the offer. In HB 15/41204, no special circumstances existed under section 60 because the defective work case was not complex, but rule 38 permitted an award of costs because the amount claimed exceeded $30,000; as the owners were successful and there was no disentitling conduct, Porthaze Pty...

Court Disposition

Costs ordered partly in favour of Simon and Katrina Friend; no costs order in favour of Porthaze Pty Limited in HB 15/32089.

Orders

  • ['In HB 15/32089 each party must pay their own costs.' 'In HB 15/41204 Porthaze Pty Limited must pay Simon and Katrina Friend the sum of $4,100.00 as their costs of the proceedings within 14 days of the date of this order.']